Bhairo (Migration) - [2020] AATA 2780

Bhairo (Migration) [2020] AATA 2780 (28 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr. Mohit Bhairo
CASE NUMBER:  1935446
HOME AFFAIRS REFERENCE(S):          BCC2019/3329397
MEMBER:P. Adami
DATE:28 May 2020
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 28 May 2020 at 3:31pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – no compelling need to remain in Australia as a student – extent of non-compliance – degree of hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
Koellner v Spicer [2019] NSWSC 17571
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant is a 25 year old Indian citizen, who initially arrived in Australia in February 2018 to study a Master of Business at the University of Queensland (UQ). Prior to arriving in Australia, the applicant had completed a Bachelor of Arts in India. After commencing the Master of Business, the applicant sought to transfer into a Master of Social Work first at UQ, then at Federation University. The applicant could not obtain entry into Federation University having only passed 1 out of 4 subjects in the Master of Business. On 3 September 2018, the applicant applied for enrolment in the Certificate IV in Commercial Cookery and a Diploma of Hospitality. In January 2020, the applicant completed the Certificate IV having obtained a Bridging Visa E which granted him study rights after initially having lost them. The applicant currently holds a Confirmation of Enrolment (COE) for the Diploma in Hospitality, but he cannot study this course as he does not currently hold study rights with the Bridging Visa E expiring.
The applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s116(1)(b) of the Act. The delegate concluded that the applicant had failed to comply with the condition of the visa that required the applicant to maintain enrolment in a registered course of study, that once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level or higher, than the course for which the visa had been initially granted.
Upon concluding that the applicant had not maintained his enrolment at the required level (Level 9), the delegate considered all other relevant circumstances before concluding that the applicant’s visa ought to be cancelled. The delegate’s reasons are set out in their Record of Decision dated 13 December 2019, a copy of which was provided to the Tribunal on 16 December 2019 by the applicant when he filed his ‘Application for review’.
The issue in the present case is whether the ground for cancellation under s116(1)(b) of the Act is made out, that is, whether the applicant did not comply with a condition of his visa. If the Tribunal determines that the ground for cancellation is made out, the Tribunal must consider whether the applicant’s visa should be cancelled.
The applicant appeared before the Tribunal by telephone on 22 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance on an interpreter in the Hindi and English languages, although the applicant requested to have the hearing conducted in English and only utilise the interpreter if he felt it necessary (which he did not). The applicant was assisted in relation the review by his registered migration agent Mrs. Pratibha Sharma, who also appeared by telephone at the hearing.
Mrs. Sharma explained to the Tribunal that the applicant was nervous prior to the hearing and being unfamiliar with the Tribunal and its processes, the applicant felt his nervousness may have seen him require the interpreter’s assistance.
The Tribunal is mindful that the applicant is not required to establish that the facts or grounds for cancellation do not exist, but the Tribunal must be satisfied that the facts or grounds for cancellation do exist. In Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 the Full Court of the Federal Court of Australia at [25] stated, “The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.” Further at [32], the Full Court stated, “A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The decision-maker must ultimately be satisfied that the ground for cancellation is established.”
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The applicant's visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) ('the Regulations'), when the visa was granted.
Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa- see Schedule 2, cl 500.611(1)(a) of the Regulations. Condition 8202 requires that the visa holder maintain enrolment in a registered course of study that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.
The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course, the extent of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest level.
The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason to change their course of study, they are specifically prohibited from 'downgrading' to a simpler course on the AQF hierarchy. In that regard, condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia's student visa program is robust.
Has the Applicant Failed to Comply with Condition 8202(2)(b)?
The delegate in their December 2019 decision notes that the applicant was granted a student visa in relation to a Master of Business at the University of Queensland. The delegate states in their decision that the applicant “came to Australia with the purpose of gaining qualifications.” The delegate notes that the applicant’s enrolment in the Master of Business was cancelled on 17 August 2018 as a result of cessation of studies. As noted above, on 3 September 2018 the applicant obtained enrolment in the Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at New England Institute of Technology.
According to the delegate, the Master’s degree for which the visa was granted at AQF level 9. The delegate further states that the Diploma of Hospitality Management is listed at Level 5. The delegate concludes this change in enrolment on the basis of the information contained in the Department of Education and Training’s ‘Provider Registration and International Student Management System (‘PRISMS’).
The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) ('the ESOS Act'). It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student's enrolment status and notify the Department of Education and Training of any issues arising from a student's general compliance with visa conditions once a visa has been issued.
The delegate found that the applicant had breached Condition 8202(2)(b) of his visa because he had downgraded his enrolment from an AQF Level 9 course to an AQF Level 5 course, 4 levels below which the visa had been granted.
On 6 November 2019, the Department of Home Affairs wrote to the applicant notifying him of its intention to consider cancelling his visa (‘the NOICC’). The NOICCC set out particulars of the matters that have been summarised above and put the applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.
The applicant responded to the NOICC on 20 November 2019. Whilst not specifically agreeing with the delegate that the applicant had breached condition 8202(2)(b), Mrs. Sharma implicitly acknowledges that the applicant is in breach of condition 8202. Mrs. Sharma writes, “He himself was thoroughly enjoying learning new dishes and decided to formaly [sic] study commercial cookery cert IV and on 3 September 2018 he enrolled in New England College in Cert IV and diploma of hospitality.” Further, Mrs. Sharma also writes, “He realises his mistake and deeply repents for not keeping his enrolment in Master degree which he has been planning to study after completion of his diploma of hospitality.” The applicant at the hearing agreed that the ground for cancellation existed.
On the evidence before the Tribunal, the Tribunal concludes that the applicant breached condition 8202(2)(b) of his visa.
Consideration of the Discretion to Cancel the Visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including matters raised by the applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The matters that ought to be considered are specifically listed in PAM3 as follows:
(a)the purpose of the Applicant's travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;
(b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant's control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);
(c)the extent of the Applicant's compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;
(d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;
(e)the Applicant's past and present behaviour towards the Department (e.g. whether they have been truthful and co-operative in their dealings with the Department);
(f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;
(g)whether there are mandatory legal consequences arising from a decision to cancel the visa;
(h)whether Australia has obligations under any relevant international agreements that would be breached as a result.
The Applicant’s Evidence
The applicant’s position in the NOICC response is included below. The Tribunal notes that the applicant’s explanation regarding the circumstances and reasons for the breach is consistent with the submissions made to the Tribunal at the hearing and the contents of Mrs. Sharma’s 14 May 2020 submission filed with the Tribunal. Using the NOICC’s words, it may be summarised as follows:-
As informed by our client he arrived in Australia on 25 February 2018 to study a master degree in business from university of Queensland which was to start on 19 February 2018 but unfortunately, his visa was granted on 20 February 2018 due to which he could not even attend the Orientation on 11 February 2018. In-spite of all his best efforts he could reach Australia on 25 February 2018. According to our client his student life in Australia started on a wrong foot due to which he stressed a lot before and after coming to Australia because he could not attend the orientation and was also left behind in class as he missed one week of study of the first semester.
He completed his first semester on 23 June 2018 but unfortunately passed only one subject out of four. His poor performance increased his stress and disappointment.
He decided to change his study stream to social work because back home he completed a bachelor degree in Arts with sociology including history and political science. He applied for offer letter in university of Queensland and later in Federation University.
UQ university requested for more documents to prove that he completed the subjects in sociology as part of his bachelor degree. He did provide the degree and marksheets but University requested for transcript from his college back home which was taking too long in India to which he decided to apply in another university also as he did not want to remain without study and waste his time.
He received a conditional offer letter from Federation University and the conditions were (a) a successful completion of current semester with satisfactory academic results; (b) Release letter from university of Queensland
Due to his poor performance he could not provide successful results of his first semester and his request for a release letter was not accepted by UQ therefore Federation University refused to register him in Master of Social Work. During that time, he was in a dilemma and extremely confused about his future study because firstly he didn’t want to continue Business Administration in UQ and secondly, he was unable to get enrolled in master of Social Work in UQ and Federation University.
As informed by our client when he was looking for casual jobs during his study, he found a job at “Vindaloo Blue” to work as a cook. He was very happy because he had some experience of cooking back home thus from July 2018 he first started working voluntarily to learn commercial cooking skills in Australia and after few months he started working paid casual hours at “Delhi Junction” Indian restaurants owned by the same employer which increased his interest in Cookery.
Considering his keen interest and passion for cooking he was constantly being advised by his employer, chef and friends at work place to seriously take up cookery as his future profession. As he himself was thoroughly enjoying learning new dishes therefore the motivation and his passion forced him to have formal study/skills in commercial cookery.
On 3 September 2018 he enrolled in Cert IV in New England college. He was regularly attending his classes but unfortunately, he lost study rights after the cancellation of his visa on 13 December 2019. Our client did not give up and requested the department to grant him study rights so that he could complete his courses. He believes that after a long struggle as a student something good prevailed and he was very lucky to have been granted the study rights to complete commercial cookery.
On 26 January 2020 he successfully completed cert IV in Commercial cookery. Due to the closure of New England College he had to change his education provider for diploma of hospitality. On 24 February 2020 he enrolled in Gamma College and again requested the department for study rights to complete the diploma of hospitality but was refused the right to study. He has a valid COE for the diploma of Hospitality but due to his current visa status he is unable to finish his course.
Our client informs us that since the cancellation of his visa he has been repenting. He is genuinely and sincerely apologetic to his family. He feels ashamed and embarrassed to face them as they have been giving their unconditional financial and moral support without any expectations from him except his successful qualifications.
Our client informs that even though he did put in his best efforts to cope with his situations but with his sincere efforts also he has not been able to achieve his goals.
Firstly, being late in arriving in Australia due to which he was left behind in studies he
took longer time compared to his batch mates to adjust in new student environment in
a new country.
Secondly, after all his efforts he was not able to get enrolled in masters in Social work.
Thirdly, after the cancellation of his visa even though he was given study rights to finish cert IV commercial cookery but was not given enough time to finish diploma in
hospitality for which he had already paid $ 1250 as tuition fee when took the COE and
later paid $ 1000 after receiving a message from the college to pay second instalment. In total he has already paid a sum of $ 2250 towards the tuition fee of diploma of hospitality. [Reference to supporting documents filed are omitted]
The Purpose of the Visa Holder’s Travel and Study in Australia, Whether the Visa Holder has a Compelling Need to Travel to or Remain in Australia
The applicant told the Tribunal that he chose to study the Master of Business as he was working as a manager of a petrol station in India and he thought to study to improve his management skills. The Tribunal accepts that the applicant travelled to study in Australia as a full time student. The Tribunal also accepts that the applicant has a desire to complete the Diploma of Hospitality. The Tribunal is mindful of the NOICC response stating, “He wants to complete both the courses in Hospitality first and then genuinely complete a degree in Hospitality at a Master level as he wants to go back with a master degree for which he came to Australia.” The intention of completing a Master’s degree was not pressed at the hearing, but the emphasis was on completing the Diploma of Hospitality.
'Compelling' and 'Need' are words that ought to be given their ordinary meaning having regard to the purposes of the legislation. They are not defined in either the PAM3 or the Act.

In Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211; (2005) 143 FCR 204, Crennan J (then sitting as a judge on the Federal Court) considered the definition of the word ‘compelling’ in the context of the Migration Regulations 1994 (Cth). Her Honour concluded at [37], p213 that ‘compelling’, when considered in the legislative framework regarding the visa regime, “is wide and unqualified. “Compelling” in its wide, ordinary meaning means “forceful”.” Her Honour concluded that there was nothing in the relevant subclause which indicated that compelling should be construed narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing, or which indicate that compelling includes an involuntary element, involving circumstances beyond a person’s control or necessity (see [37], p213).
Although used in a different context to the visa regime, various courts have stated that “need” is a relative concept, it is different from ‘want’ and does not simply mean ‘demand’ or ‘desire’. Lord Neuberger of Abbotsbury in R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 42 at [54] stated, “”’Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but falls far short of ‘cannot survive without’.”- see Koellner v Spicer [2019] NSWSC 17571 at [123]-[126].
The Tribunal considers that the compelling need that is to be assessed in regard to PAM3 amounts to an assessment as to whether the applicant has a forceful reason to travel to or remain as a student in Australia, which is more than a want to study but less than a necessity to study in Australia.
At the hearing and in the submissions filed with the Tribunal, the applicant emphasised his desire to finish the Diploma in Hospitality and the Tribunal accepts this. The Tribunal considers on the evidence before it that the applicant has not adequately established a compelling need to remain in Australia as a student. For example, the applicant may have demonstrated that a similar course is not available in India which would have heavily weighted in favour of the applicant against cancellation.
The Tribunal gives this factor moderate weight in favour of cancelling the applicant’s visa.
Circumstances in Which the Grounds for Cancellation Arose- Whether There Were Any Extenuating Circumstances beyond the Visa Holder’s Control that led to the Grounds Existing
The circumstances relating to the applicant breaching condition 8202(2)(b) are set out above. The Tribunal notes that the applicant missed the orientation week and week 1 of actual study, which started his study career “on the wrong foot”- as per Mrs Sharma’s May 2020 submission. The applicant also told the Tribunal his studies “started on the wrong foot” in this regard. The Tribunal is also mindful of Mrs. Sharma’s submission that the applicant’s late arrival in Australia and the applicant’s poor academic performance in his first semester “increased his stress and disappointment”. The applicant told the Tribunal at the hearing that he had never failed before, and that he hit a blank at that moment.
The applicant explained to the Tribunal that he sought to transfer into a Master of Social Work at UQ; however UQ required a copy of his academic transcript from his Bachelor of Arts, which the applicant had completed in India. As set out above, obtaining this information took too long and the applicant had also applied to study a Master’s degree at Federation University; but the applicant’s poor study history at UQ resulted in Federation University not accepting him into their Master’s programme. The applicant explained to the Tribunal that he needed to maintain an enrolment, and that given he had cooked in India and was working at a restaurant whilst studying, he decided to get into the cookery field. According to the November 2019 NOICC response, “Considering his keen interest and passion for cooking he was constantly being advised by his employer, chef and friends to seriously take up cookery as his future profession.”
The NOICC submission further states, “Our client informs that due to 1. His visa issues in the beginning and 2. Unsuccessful efforts to change his stream to Masters of Social work in UQ and Federation University he used to feel extremely stressed and depressed. The only place and time he used to feel comfortable and happy was the restaurant where he used to work twenty hours a week. More so, his parents’ insistence and constant instructions over the phone to study something in which he has genuine interest really used to disturb his mental state and finally he took a decision to enrolled in Commercial Cookery without wasting any further time because he himself used to enjoy in the Kitchen.” The NOICC submission concludes in this regard, “He feels that he made a mistake in the beginning to study Master in Administration but soon he realised his mistake and wanted to change to Social work but even after his efforts he was unsuccessful to do so.”
The Tribunal is mindful that the applicant arrived in Australia on 25 February 2018, when he had been granted his visa 20 February 2018 and university studies had started on19 February 2018. The Tribunal accepts that the applicant missed the Orientation Week and his first week of studies, and this is commencing studies on the wrong foot. However, the Tribunal notes that the applicant passed 1 subject out of 4 enrolled subjects having successfully completed a Bachelor of Arts, prior to his arrival in Australia. The Tribunal considers that the applicant was not inexperienced with university life or university study, and that it was within his control to maintain suitable enrolment.
The Tribunal is also mindful that the applicant is living away from home and in a foreign country; however, his university experience sets him apart from a student arriving straight from secondary school and studying overseas, for example. Mrs. Sharma told the Tribunal that the applicant’s circumstances for this ground arising was outside the applicant’s control because the applicant started his study life on the wrong foot, and that he had never failed anything before. The Tribunal accepts that the applicant now understands that he made a mistake enrolling in the Master of Business and he sought to enrol in a different Master’s programme.
However, the Tribunal considers given the applicant’s educational experience that the ground for cancellation existed due to factors within the applicant’s control. The applicant did not seek a visa which would have resulted in him complying with condition 8202(2)(b).
The Tribunal places substantial weight on this factor in favour of cancelling the applicant’s visa.
Extent of Compliance with Visa Conditions
The Tribunal notes that the applicant has otherwise complied with his visa conditions, and only breached condition 8202(2)(b). The delegate concluded in their decision that the applicant’s enrolment in the Master of Business was cancelled on 17 August 2018, and that the applicant had not been enrolled at the required AQF level for 16 months. The delegate considered the extent of non-compliance to be significant.
The Tribunal considers that although the breach of visa conditions is limited to only condition 8202(2)(b), the condition is intended to reinforce the intention of the student visa, so that holders are able to enter and remain in Australia for the purposes of study at the level for which the visa was granted.
The Tribunal considers the applicant’s breach of the condition was significant, however, the Tribunal also notes that the applicant did apply for and was granted a Bridging Visa E which allowed him to complete the Certificate IV in Commercial Cookery. The Tribunal gives this factor moderate weight in favour of cancelling the applicant’s visa.
The Degree of Hardship that Might be Caused (Financial, Psychological, Emotional or Other Hardship)
The NOICC submission states, “…he [the applicant] has learnt to be a self-dependent and self-sufficient but he will have no value if at all he has to go back without qualifications.” Also, “He came to Australia with a purpose of gaining qualifications in Australia but if his visa is cancelled then he will have to go through tremendous hardships and embarrassment if he goes back without gaining anything from Australia. He is extremely apologetic to the department and his family.” Mrs. Sharma in the May 2020 submission filed with the Tribunal states, “He feels that he will have to go through tremendous hardships and embarrassment if his visa is cancelled and he has to go back without completing his study from Australia. He is extremely apologetic to the department and his family.” The Tribunal accepts the possible embarrassment as stated is an emotional hardship to be weighed.
The Tribunal notes that the applicant has paid $2,250 of the total cost for the Diploma of Hospitality course to Gamma Education. The applicant suggests that this fee will be lost to him if he is unable to study the Diploma course, and the Tribunal considers the loss of this money is also a relevant hardship.
The Tribunal is mindful that the applicant faces the prospect of not completing his original study plan as proposed and having wasted money on the Master’s course undertaken so far. The Tribunal accepts that the applicant and his family may suffer some hardship if the applicant’s visa remains cancelled. The applicant has completed a Certificate IV in Commercial Cookery while studying in Australia, so has obtained qualifications that might help him in his future employment. The Tribunal considers the hardships that are said to be suffered are ameliorated by the applicant’s failure to maintain suitable enrolment or to apply for the correct visa.
The Tribunal gives some weight to this factor against cancelling the applicant’s visa.
Past and Present Behaviour of the Applicant towards the Department
The applicant responded to the NOICC and he was cooperative and courteous in his dealings with the Tribunal. No adverse information has been provided to the Tribunal that he has been uncooperative with the Department or departmental staff. The Tribunal gives minimal weight to this factor in favour not to cancel the applicant’s visa.
Whether there are Persons in Australia whose Visas Would, or May, be Cancelled Under s140
The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s140 of the Migration Act 1958. The Tribunal considers this factor is not relevant and therefore places no weight on this factor in the applicant’s favour not to cancel his visa.
Mandatory Legal Consequences Arising from a Decision to Cancel the Visa
The Tribunal notes that the delegate refers to the possibility that the applicant will become an unlawful non-citizen and may be liable to detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. The delegate also refers to s48 of the Migration Act which would cause the applicant to have limited options if applying for a further visa while in Australia. The delegate also refers to Public Interest Criterion 4013 which may prevent the applicant being granted particular temporary visas for a specific period from the date of cancellation.
The Tribunal considers that these consequences are intended possible outcomes as a result of a cancellation of an applicant’s Student Visa. Detention would arise only if the applicant were not to return to India voluntarily in the time permitted to leave after an unfavourable decision. The Tribunal places little weight on this factor in the applicant’s favour not to cancel his visa.
Whether any International Obligations, Including Non-refoulement and Best Interests of the Children as a Primary Consideration, Would be Breached as a Result of the Cancellation
There is no information before the Tribunal that this application raises any questions of Australia’s international obligations. Tribunal considers this factor is not relevant and therefore places no weight on this factor in the applicant’s favour not to cancel his visa.
Any Relevant Matters
Mrs. Sharma submitted to the Tribunal that the applicant was law abiding and had not even received a fine. Mrs. Sharma emphasised that she had met the applicant and found him to be a sober and genuine student. The cancellation arose she stated, as a result of the applicant starting off his studies on the wrong foot, and that he was shocked with his results having never failed anything before. Mrs. Sharma also submitted that the applicant was very depressed and stressed after the delegate’s visa cancellation, although no medical evidence was filed in support of the depression claim. Mrs. Sharma emphasised the applicant’s desire to finish the Diploma, and asked that the Tribunal give the applicant an opportunity to complete the course given he had paid $2,250 towards the cost.
The Tribunal found the applicant and Mrs. Sharma to be sincere at the hearing, and it has carefully considered the circumstances of the applicant and the circumstances of him breaching condition 8202(2)(b). The Tribunal considers in this finely balanced matter, that the factors against cancellation are outweighed by those factors in favour of cancellation. As such, the Tribunal concludes that the applicant’s visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
P. Adami

Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.